January 1, 2018
While many people want to avoid a courtroom divorce, there is often confusion when it comes to alternatives—what really is out there? Two possibilities: mediation and collaborative divorce. In both of these, the goal is to reach an out-of-court settlement on all the relevant issues, from division of property to child custody. Where they differ, however, is in the process of negotiating. Let’s briefly review some of the key differences between these proceedings.
In mediation, spouses directly negotiate terms of the divorce: Held in a private, informal setting, the parties have several one-on-one meetings over a period of months, under the supervision of a neutral third party, known as a mediator. The mediator cannot decide the divorce terms or give legal advice but, instead, acts as a referee to keep the couple focused on the issues at hand.
Depending on the jurisdiction, attorneys may or may not be allowed in the actual mediation sessions, but, at a minimum, they can be available for advice, every step along the way.
The spouses each separately may bring evidence (such as financial statements) to mediation, and each can have attorneys and other experts prepare this material. Also, mediation doesn’t affect its use in court, if they want to use the same information in litigation.
Mediation can take place at any time—even after a courtroom trial has begun. If the mediation is successful, the parties file a signed agreement with the court, and the divorce is finalized. If mediation breaks down, then the couple can continue the divorce in court.
In a collaborative divorce, the spouses each hire attorneys to represent them, but then the attorneys—and spouses as needed—join together to work out the divorce terms.
Along the way, the parties share documents and have a frank and open discussion about all issues. They may jointly hire experts to facilitate the process. (So, for example, in a mediation, both spouses may hire forensic accountants. In a collaborative divorce, the spouses hire just one accountant between them.)
Prior to the negotiation, everyone agrees that, if the negotiations fail, both attorneys will resign, and the parties can’t use any information (e.g. that accountant report) in subsequent litigation. For this reason, people typically attempt a collaborative divorce early on. Because if it fails, the parties essentially have to re-start the divorce from the very beginning.
While mediation and collaborative divorce have their strengths and weaknesses, what is important to recognize is that there are calmer, easier, and less expensive alternatives to a classic courtroom showdown. And no matter what form of divorce you choose, you should make sure that you have experienced, qualified counsel at your side. At Ganguly Brothers, PLLC, our capable attorneys are committed to making your divorce as smooth and stress-free as possible. For a free, confidential consultation, contact us through our website contact page or call us at 585-232-7747.